Petersen v. Cook

Court of Appeals of Oregon

Petersen v. Cook

990 P.2d 931, 164 Or. App. 240, 1999 Ore. App. LEXIS 2024

CourtCourt of Appeals of Oregon

DecidedNovember 24, 1999

Docket97-02-28552M; CA A103196

StatusPublished

Cited by3 cases

This text of 990 P.2d 931 (Petersen v. Cook) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Petersen v. Cook, 990 P.2d 931, 164 Or. App. 240, 1999 Ore. App. LEXIS 2024 (Or. Ct. App. 1999).

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Opinion

*242 WOLLIIEIM, J.

Plaintiff appeals the trial court’s judgment requiring him to pay $992.50 for the cost of his court-appointed attorney in the underlying habeas corpus proceeding. The trial court imposed that judgment for costs pursuant to ORS 161.665. 1 With two exceptions, this case is indistinguishable from Alexander v. Johnson, 164 Or App 235, 990 P2d 929 (1999). First, this case arises from a habeas corpus proceeding rather than a post-conviction proceeding; however, that difference does not alter our analysis of the applicable statutes. Second, in our judgment affirming the trial court’s dismissal of plaintiffs habeas corpus proceeding, we instructed the trial court that it could exercise its discretion under ORS 161.665 to include expenses and compensation for plaintiffs court-appointed counsel in the final judgment. We erred in so instructing the trial court. We conclude that neither ORS 161.665 nor any other statute authorized the judgment of costs in this action and that the court’s imposition of those costs was error apparent on the face of the record. See Alexander. Accordingly, we vacate the judgment for costs of $992.50.

Judgment imposing expenses and compensation for court-appointed attorney in amount of $992.50 vacated; otherwise affirmed.

1

ORS 161.665 provides, in part:

“(1) Except as provided in ORS 151.505, the court, only in the case of a defendant for whom it enters a judgment of conviction, may include in its sentence thereunder a provision that the convicted defendant shall pay as costs expenses specially incurred by the state in prosecuting the defendant. Costs include a reasonable attorney fee for counsel appointed pursuant to ORS 135.045 or 135.050 and a reasonable amount for expenses approved under ORS 135.055. * * *

“(2) Except as provided in ORS 151.505, the court, after the conclusion of an appeal of its initial judgment of conviction, may include in its final judgment or modify the judgment to include a requirement that a convicted defendant pay as costs a reasonable attorney fee for counsel appointed pursuant to ORS 138.500 * * *.

“(3) The court shall not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.”

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*242 WOLLIIEIM, J.

Plaintiff appeals the trial court’s judgment requiring him to pay $992.50 for the cost of his court-appointed attorney in the underlying habeas corpus proceeding. The trial court imposed that judgment for costs pursuant to ORS 161.665. 1 With two exceptions, this case is indistinguishable from Alexander v. Johnson, 164 Or App 235, 990 P2d 929 (1999). First, this case arises from a habeas corpus proceeding rather than a post-conviction proceeding; however, that difference does not alter our analysis of the applicable statutes. Second, in our judgment affirming the trial court’s dismissal of plaintiffs habeas corpus proceeding, we instructed the trial court that it could exercise its discretion under ORS 161.665 to include expenses and compensation for plaintiffs court-appointed counsel in the final judgment. We erred in so instructing the trial court. We conclude that neither ORS 161.665 nor any other statute authorized the judgment of costs in this action and that the court’s imposition of those costs was error apparent on the face of the record. See Alexander. Accordingly, we vacate the judgment for costs of $992.50.

Judgment imposing expenses and compensation for court-appointed attorney in amount of $992.50 vacated; otherwise affirmed.

1

ORS 161.665 provides, in part:

“(1) Except as provided in ORS 151.505, the court, only in the case of a defendant for whom it enters a judgment of conviction, may include in its sentence thereunder a provision that the convicted defendant shall pay as costs expenses specially incurred by the state in prosecuting the defendant. Costs include a reasonable attorney fee for counsel appointed pursuant to ORS 135.045 or 135.050 and a reasonable amount for expenses approved under ORS 135.055. * * *

“(2) Except as provided in ORS 151.505, the court, after the conclusion of an appeal of its initial judgment of conviction, may include in its final judgment or modify the judgment to include a requirement that a convicted defendant pay as costs a reasonable attorney fee for counsel appointed pursuant to ORS 138.500 * * *.

“(3) The court shall not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.”

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990 P.2d 931, 164 Or. App. 240, 1999 Ore. App. LEXIS 2024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petersen-v-cook-orctapp-1999.

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